Thursday, October 06, 2005

So despondent this morning ...

I almost decided to let it go. Just let it go. But the Miers nomination is such an unmitigated disaster, could I just walk away?

Well, I will say this. I still like and support Pres. Bush. We have a war going on, and I am mindful of that. My criticism is directed at this very misguided effort to put the President's friend on the Supreme Court. And her refusal to take the job, too, reinforces my fears that she may be an opportunist too shallow to realize the importance of the moment.

Looking over the commentary today, I ran across this masterpiece from David Frum. It says a lot of what I have been saying in the ongoing commentary at confirmthem.com, but much better. This nomination is cause for great alarm and it should be defeated.

Of special note, take a look at Miers warm affiliation with the left-wing ABA. Folks, without blowing too much cover here, many years ago I foreswore any affilition with this wretched organization full of liberals who contemptuously sneer at conservative lawyers as moronic troglodytes.

Not willing to take the risk that you won't click to read Frum, here is the column in its entirety:
Hugh Hewitt asks whether there isn't some personal animus or motive behind my comments on the Miers nomination. A number of readers have raised the same concern. I suppose it's a natural question. So let me answer for the record that my relations with Miers were always professional and correct when we worked together. I always thought she was a fine and decent person, and I have no personal animus or motive of any kind in this matter.

And though this is probably unnecessary let me add here also: I have been and remain a supporter of this administration and this president. For the past three years, I have been speaking and writing in defense of this administration's goals and this president's character, not just in this country but around the world, most recently in for example The Financial Times. This summer I even proposed to do a documentary about decision-making inside the Bush administration, in hope of refuting once and for all the unfair stereotypes about the way in which it does its work.

So if I don't dislike Miers and want the president to succeed, why am I speaking out? Aside from all the substantial reasons I have cited to date, I am speaking out because there are so many others who want to speak but cannot. I have spent hours over the past three days listening to conservative jurists on this topic - people who have devoted their lives to fighting battles for constitutionalism, for tort reform, for color-blind justice, people who fought the good fight to get Bork, Scalia, Thomas, and now Roberts onto the high Court.

Their reaction to the nomination has been almost perfectly unanimous: Disappointment at best, dismay and anger at worst. Here's the tough truth, and it will become more and more important as the debate continues: There is scarcely a single knowledgeable legal conservative in Washington who supports this nomination. There are many who are prepared to accept her, reluctantly, as the president's choice. Some still hope that maybe it won't turn out as bad as it looks. But ask them: "Well what if the president had consulted you on this choice," and the answer is almost always some version of: "I would have thought he was joking."

Why do so many fine conservative lawyers object to Miers? This oped by John Yoo gives a hint. John was one of the most brilliant lawyers in the Office of Legal Counsel in the Department of Justice in the first Bush term. He was a stalwart defender of the president's war powers - and he has taken his share of abuse in the press for fighting for his conservative principles.

Yoo's piece is very carefully phrased. Indeed, given the heavy hints that the administration has been throwing out recently, it must have taken strong courage for this man who is himself eminently qualified for an appellate judgeship, to have gone even as far as he did. But listen:

"[A]ccording to press reports, she did not win a reputation as a forceful conservative on issues such as the administration's position on stem cell research or affirmative action."

Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.

Inside the White House, Miers was best known, not as a conservative, not as a legal thinker, but as a petty bureaucrat.

Read this article from a December 2004 article in the Legal Times about Miers' promotion to general counsel:

"Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.

"'There's a stalemate there,' says one person familiar with the chief of staff's office. 'The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance.'

"One former White House official familiar with both the counsel's office and Miers is more blunt.

"'She failed in Card's office for two reasons,' the official says. 'First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents.'"

The Washington Post reports that as staff secretary she was notorious for personally correcting the punctuation in White House memos. This is sadly true - and it is also true that in 14 months of working with her on punctuation, I never heard her say anything substantive about any policy issue, with one exception. Yoo again:

"Another red flag for conservatives may be what is regarded as Miers's strongest credential: her work with the organized bar. Miers was elected president of the Texas bar and was a mover and shaker in the American Bar Association. Republicans have long criticized the ABA for politicizing the professional bar by taking positions on controversial social issues such as abortion and providing politically biased evaluations against Reagan-Bush judicial nominees. To be sure, Miers reportedly fought to allow the general membership to vote on the ABA's position supporting the right to abortion, a fact much trumpeted by Bush administration supporters yesterday. But she also apparently urged that the White House preserve the ABA's privileged role in reviewing the qualifications of judicial nominees."

Some NRO readers have challenged me: Why should we trust you when you say that Miers is not qualified rather than trust the president when he says she is?

My answer is: Don't trust me. Trust your own eyes. The woman is 60 years old, a lawyer for more than three decades. Can you see any instance in this long life and career where Miers ever took a risk on behalf of conservative principle? Can you see any indication of intellectual excellence? Did she ever do anything brave, anything that took backbone? Did anyone before this week ever describe her as oustanding in any way at all?

If the answers to these questions is No, as it is, then you have to ask yourself: Why is a Republican president bypassing so many dozens of superb legal conservatives to choose Harriet Miers for the highest court in the land?

I am not saying she is a Michael Brown. But I am saying she is being chosen for her next job in exactly the same way and for the same reasons that Michael Brown was chosen for FEMA. And that is not good enough for me. Is it good enough for you? Hugh Hewitt, you are a lawyer: Is it really good enough for you?
Game. Set. Match.

Withdraw the nomination.

Update: Check this out, too. That song you hear is indeed the fat lady singing.